Aziz Bano vs. Mohammad Ibrahim Husain, 1925

The facts of the case are that This is an appeal by defendant No.1 arising out of a suit for restitution of conjugal rights. The plaintiff's case was that the defendant No. 1 was married to him on the 25th of September, 1918 on a deferred dower amounting to Rs. 500 plus 2 dinars by her father acting as her guardian, but that she and. her relations, the other defendants, were now refusing to send her to the plaintiff. The defence taken by the defendant-appellant was that she was not aware of the alleged marriage, that her father had never consented to it, and that she being a Shiah and the plaintiff being a Sunni, no legally valid marriage could have been contracted and, lastly, that on attaining puberty she had repudiated the marriage.

 In second appeal two points have been urged on be half of the defendant: (1) that under the Shiah Law the marriage of a Shiah woman with a Sunni husband was illegal and nullity and (2) that, in any case, such marriage was voidable.

That it was likely that a divergence of opinion might arise becomes at one apparent when it is appreciated how the authenticity of traditions, came to be examined centuries afterwards. Differences of opinion were quite natural. When such Differences arose among the Sunni jurists Imam Abu Hanifa, Imam Malik, Imaift Shafi and Imam Hanbal who flourished in the first and the second centuries of the Hijra, it is not at all surprising that differences of opinion arose, among the Shiah. Jurists also of whom the earliest jurists, whose book is in existence, namely, Ali Mufid, flourished in the third and the fourth. centuries. The point in dispute cannot now be decided by Courts sitting so many centuries afterwards by an examination of traditions only. Reliance must be placed on the opinion of recognised jurists who alone could have undertaken the task of sifting the traditions and, in cases of Mergence, on their comparative superiority.

The facts involved are all admitted in second appeal. It has been found that the plaintiff Muhammad Ibrahim, who is the respondent in this Court, is Sunni by faith. He was married with the consent of her father to the appellant Musammat Aziz Bano, who was a minor at the time of the marriage. Matsammat Aziz Bano and her father both profess the Shiah faith. Aziz Bano, on attaining majority according to the Muhammadan Law (on attaining puberty), repudiated her marriage with Muhammad Ibrahim on the ground that Muhammad Ibrahim being a Sunni by faith, and Aziz' Bano herself being a Shiah, the marriage was void in law. Muhammad Ibrahim wanted that Aziz Bano should come and live with him and, therefore, made attempts to induce her father (the mother is dead) to send away the girl to him. This being refused, he brought the suit out of which this appeal has arisen.

1. Whether the Shia law comes under foreign law and 
2. Whether the expert can give an opinion on Shia law?

The judgment of the High Court that the Shia law on marriage is the law of the land and is in force in India. It can by no means be called foreign law, nor is such law a science or art within the meaning of section 45. It is the duty of the Courts themselves to interpret the law of the land and apply it and not to depend on the opinion of witnesses howsoever learned they may be. It would be dangerous to delegate their duty to witness produced by either party. Foreign law, on the other hand, is a question of fact with which the Courts in India are not supposed to be conversant.

Opinions of experts on foreign law are, therefore, allowed to be admitted.

Expert opinion is relevant to all questions on points of science or art. The word “science” does not merely mean subjects of science study or “art” subjects of fine arts. “The words ‘science, or ‘art’ include all subjects on which the course of special study or experience is necessary to the formation of opinion.  FIELD in his oft-quoted passage, says: The words ‘science’ or ‘art’ are to be broadly construed, the term science’ not being limited to higher sciences, and the term ‘art’ not being limited to fine arts but having its original sense of handicraft, trade, profession and skill in work which, with the advance of culture has been carried beyond the sphere of the common pursuits of life into that of artistic and scientific action. 

No expert can be permitted to speak on a matter with which the judge may be supposed to be equally well acquainted. When the Court has to decide upon the identity of the handwriting of a certain person or the identity of a certain person’s finger impression, the Court may receive the evidence of a person who has acquired an expertise on the matter. Apart from persons possessing professional qualifications on the subject, the Court may receive the evidence of a person who is otherwise acquainted with the subject

• The Court concluded in this case that the Shiah Law on marriage is the law of the land and is in force in British India. It can by no means be called foreign law, nor is a science or art within the meaning of that section. 
• It is the duty of Courts themselves to interpret the law of the land and apply it and not to depend on the opinion of witnesses howsoever learned they may be. It would be dangerous to delegate their duty to witnesses produced by either party. 
• Foreign law, on the other hand, is a question of fact with which Courts in British India are not supposed to be conversant. In my opinion his evidence does not come within Section 45 of the Indian Evidence Act and is inadmissible.